Vernon v. The Manhattan Co., 22 Wend. 190, the chancellor said: "The word dealing' is merely used as a general term to convey the idea that the person who is entitled to actual notice of the dissolution must be one who has had business relations with the firm, by which a credit is raised upon the faith of the copartnership," and this statement of the chancellor is recited with approval by DENIO, J., in Clapp v. Rogers, 12 N. Y. 286.

There does not seem to be any reason for distinguishing the case of an agent who is in the employment of the firm at the time of the dissolution, and who thereafter, without notice of the dissolution, continues under the same apparent employment, from that of a person who has had mercantile transactions and relations with the firm, as a vendor or otherwise. In each case the credit is presumed to have been given originally upon the responsibility of the individual members of the partnership, and justice requires as much in the one case as the other, that all the members should be bound so long as the partnership may be supposed to exist. Watson on Part. 384.

The principal question in this case is, whether Loveland had notice of the dissolution of the firm of Dillon, Beebe & Co., which occurred March 29, 1869, prior to August 31, 1869, when the note upon which the action was brought was made. The firm was engaged in the business of the purchase, shipment and sale of lumber, and its principal office was at Toledo, in the State of Ohio. The plaintiff was employed to purchase lumber in the western States and in Canada, and resided at Detroit. Notice of dissolution was published in the newspapers at Toledo, and a copy was mailed to the plaintiff, addressed to him at Detroit.

Loveland, on his direct examination, testified positively that he never received a notice. On his cross-examination, he stated that he had no recollection of receiving or seeing the notice, and that, if he had seen it, he thought he should have remembered it. The judge submitted it to the jury to find whether the plaintiff received the notice. The defendants' counsel excepted to the submission of the question to the jury, on the ground that the jury would not be justified in finding from the evidence that the plaintiff did not receive the notice, and upon the further ground that it was immaterial whether he received it or not; that the mailing of the notice was all that the defendant was required to do to protect him from liability for the subsequent services of the plaintiff.

The publication of notice of the dissolution of a partnership in a newspaper at the place where the business was carried on is notice to all persons who had not had prior dealings with the firm; and, if thereafter one of the partners enters into a contract in the firm name with a new customer or dealer, the other partners will not be bound. The rule is different in respect to persons who have dealt with the firm before the dissolution. The rule in such cases in this State requires that, to relieve a retiring partner from subsequent transactions in the partnership name, notice of the dissolution must be brought home to the person giving credit to the partnership. If, in any way, by actual notice served, or by seeing the publication of the dissolution, or by information derived from third persons, the party, at the time of the dealing, is made aware of the fact that the partnership has been dissolved, the contract will not bind the firm. It is sufficient to exempt the firm from liability that the person so contracting with a partner in the firm name knew or had reason to believe that the partnership had been dissolved, but this must appear and be found by the jury, or else the contract will be treated as the contract of the partnership. Ketcham v. Clark, 6 Johns. 144; Graves v. Merry, 6 Cow. 701; Vernon v. Manhattan Co., 17 Wend. 524; 22 id. 183; Nat. Bk. v. Norton, 1 Hill, 572; Coddington v. Hunt, 6 id. 595; Clapp v. Rogers, 12 N. Y. 287; City Bank v. McChesney, 20 id. 242; Bank of Commonwealth v. Mudgett, 44 id. 514; Van Eps v. Dillaye, 6 Barb. 244; Mechanics' Bank v. Livingston, 33 id. 458. In Vernon v. The Manhattan Co., the chancellor says: "But, to exempt the copartners from liability (on a contract with a previous dealer with the firm), the jury must be satisfied that the person with whom the new debt was contracted either had actual notice that the copart nership was dissolved, or that facts had actually come to his knowledge sufficient to create a belief that such was the fact." The same rule is recognized in the other cases cited, and by elementary writers. 3 Kent's Com. 607; Story on Part., § 161; Coll. on Part., § 533; Lindley on Part. 337. LINDLEY says: "Those who have dealt with the firm before a change took place are entitled to assume, until they have notice to the contrary, that no change has occurred * * If notice, in point of fact, can be established, it matters not by what means, for it has never been held that any particular formality must be observed." In this case, the jury have found that the plaintiff did not receive the notice sent by mail, and had no

Austin v. Holland.

information of the dissolution of the firm of Dillon, Beebe & Co. prior to the transaction in question. The mailing of notice properly directed to the party to be charged raises a presumption of notice in fact, for it is presumed that letters sent by post to a party, at his residence, are received by him in due course. Best on Presumption, § 403. But this is a presumption of fact, and not of law, and may be repelled by proof; and, if the receipt of the letter in this case was disproved, then the defendant failed to show the actual notice required in order to exempt him from responsibility, and the question whether the letter was received was, we think upon the evidence, for the jury. The learned counsel for the defendant has not referred us to any case which decides that the mailing of a notice of dissolution is in law equivalent to actual notice, and exempts a retiring partner from liability to prior dealers on subsequent engagements in the firm name. Notice by mail of the dishonor of commercial paper is in most cases sufficient by the law merchant to charge an indorser. It is a part of the contract that notice may be given in this way, and it is not material in fixing the liability of the indorser whether he receives it or not.

But we think the rule requiring actual notice of the dissolution of a partnership to prior dealers is a part of the law of this State, and should not be departed from. It may subject parties in some cases to inconvenience, but the principle upon which the rule proceeds is that, when one of two parties is to sustain injury from the giving of credit, the one who originally induced it should bear the loss, rather than the one who, without notice of the change, relied upon the continued existence of the partnership. Story on Part., § 160; Wat. on Part. 384.

The judgment of the General Term should be affirmed.

All concur, except, MILLER, J., not voting.

Judgment affirmed.

NOTE BY THE REPORTER.-Previous to this decision there had been some expressions in the cases which might seem to justify the defendants' position. In Granite Bank v. Ayers, 16 Pick. 392, SHAW, C. J., remarked: "All notices at one's domicile, and all notices respecting transactions of a commercial nature at one's known place of business, are deemed in law to be good constructive notice, and to have the legal effect of actual notice." Bryan v. Baldwin, 7 Lansing, 174, was an action for conversion of stock by selling it without notice. The defendant proved that a written notice was left at plaintiff's place of business two days before the sale. The plaintiff could not remember having received the notice. But the court held that whether the notice was actually VOL. XXV. — 32

Bennett v. N. Y. Central, etc., Railroad Company.

received or not, it was sufficient. Utica Bank v. Van Gieson, 18 Johns. 485, was an action to recover money paid by mistake. The defendants claimed that they were not liable without proof of notice of the mistake and demand of repayment. The plaintiff then proved that such notice aud demand had been given by a letter duly mailed to the defendants, but there was no proof of its receipt by him. The court said: "In mercantile transactions, sending notice by the post is sufficient notice to the party on the principle of general convenience. It is every day's practice as to the dishonor of a note with a view of charging the indorser, and there is no reason why the practice should not be admitted as to other mercantile business." In Jenkins v. Blizzard, 1 Stark. 338, it was said: "To persons who have not dealt with the firm notice in the Gazette will be sufficient. To persons who have so dealt express notice ought to be given - this is usually done by circular letters. In Vernon v. Manhattan Company, 17 Wend. 528, Judge BRONSON observes : "On the dissolution of a partnership the usual and proper course is to publish a notice of the fact in a newspaper, and to send a circular, or in some other way give actual notice to those with whom the house has had dealings." In the same case on appeal (22 Wend. 194) Senator VERPLANCK said: "It is requisite that actual notice be brought home to the creditor, or at least that notice should be bona fide given under such circumstances as to show that he has done all that custom, prudence and good faith require, to bring the knowledge home to the party." Senator WAGER in the same case says: "As to persons having prior actual dealings, notice is usually given by a circular sent to all the correspondents of the house, or in some other mode by which knowledge of the dissolution may be brought to the creditor." A letter promptly mailed to an insurance company, reporting the facts of a loss suffered by a policy-holder, was held a proper aud a sufficient notice. Edwards v. Miss. Valley Ins. Co., 1 Mo. App. 192.

Mailing a notice of dissolution to one who had had dealings with the partnership would be a step in the direction of actual notice, and slight corroborative evidence would warrant the inference that such notice was received, and the party duly advised of the change of the firm; but the question is of fact and not of law. Kenney v. Altvater, 77 Penn. St. 34.

BENNETT V. N. Y. CENTRAL, ETC., RAILROAD COMPANY.

A passenger who buys a through ticket, indicating no particular route, on a railroad, is bound to pursue the usual and direct route from the place of starting to the place of destination, and is not entitled to take a circuitous route from one point to another between those places.

A

CTION for damages for wrongful ejection from defendant's cars. The plaintiff purchased a ticket on defendant's road from Buffalo to Lockport, and from Lockport to Troy. He rode

Bennett v. N. Y. Central, etc., Railroad Company.

from Lockport to Rochester, and then left the direct route, and took the "old road," running from Rochester to Syracuse, a longer route. On the latter route the conductor demanded additional fare, which he refused to pay, and being told that he must pay it or leave the train, he left the train "under protest," immediately got on again, paid the additional fare, and proceeded to his destination. Plaintiff was nonsuited; this was affirmed at General Term of the Supreme Court, and he appealed.

Geo. W. Miller, for plaintiff.

Matthew Hale, for defendant.

CHURCH, C. J. The plaintiff purchased a ticket at Buffalo for Lockport, and a ticket from Lockport to Troy. The ticket indicates no particular route. It was simply a ticket from "Lockport to Troy." The evidence was undisputed on the trial that all through trains passed over the direct road between Rochester and Syracuse, passing through Palmyra, Lyons and Clyde, a distance of eighty-one miles. The old road (so called) between Rochester and Syracuse is 104 miles, passing through Auburn. The trains for that road are made up at each end and terminate at each end. It is practically a way route, and not a through route. The question is what the contract was on the part of the defendant by the ticket purchased by the plaintiff. It seems to me that it was a contract to carry the plaintiff over the usual, through, and most direct route, and nothing more.. The defendant is restricted to a charge of two cents a mile. It does not appear that the plaintiff paid any more than that sum for the eighty-one miles over the usual route. The through train from Lockport passes over the direct route, and the plaintiff must have changed cars at Rochester and taken another train. He may have supposed that the ticket entitled him to go by any road which the defendant owned, however indirect, and regardless of the distance traveled. In this I think he was mistaken. The ticket was a through ticket, and impliedly over the through route. The company were not bound to take him over any and all their roads which might terminate at the same point. A ticket from Albany to Buffalo would not entitle the holder to go by the way of Niagara Falls, although the company owns the road all the way round, and I do not see why the com